Sanctuary Showdown: The Feds Sue California

The Department of Justice is suing California to block the enforcement of state laws that it says impede the feds' efforts to expel illegal immigrants.

Attorney General Jeff Sessions will formally announce the suit today at a law enforcement gathering in Sacramento. But the lawsuit itself was filed yesterday afternoon in the United States District Court, Eastern District of California.

The Justice Department seeks to block three new laws. The first, AB 450, is the oddest of the three. The Immigrant Worker Protection Act prohibits private businesses from voluntarily allowing immigration enforcers without warrants or subpoenas to review employee records or to enter non-public parts of their companies .

That is to say, the law tells businesses that they cannot let these feds wander around on their property and look through their stuff unless they have warrants. If they cooperate without demanding legal paperwork, business owners face thousands of dollars in fines from the state. It's a full-fledged "Everything not forbidden is compulsory" law: Either you're required to cooperate by the feds or you are forbidden from cooperating by the state.

You don't have to be a nativist to see problems with this. Indeed, you can be an open-borders libertarian like myself and believe that California has absurdly overstepped its bounds by telling private business owners who they may allow on their property and who may look over their records. Those are decisions the businesses should get to make, not state officials. AB 450 violates companies' property rights and associational rights.

That's not the argument the Justice Department is offering. It says the law violates the federal Supremacy Clause by serving as an obstacle to federal immigration enforcement. We'll have to see if California can get around that by pointing to its exemptions for warrants and subpoenas. California Attorney General Xavier Becerra insisted yesterday that the state is "doing nothing to intrude on the work of federal government to do immigration enforcement."

The second law, AB 103, imposes state-level inspections on federal detention facilities used to house immigrants for possible deportation. The law also attempts to give the state attorney general's office the authority to make sure the detainees' due process rights are respected. The law was passed in response to complaints of abuse or mistreatment in California-based immigrant detention centers. The feds' lawsuit argues that this law was passed only to investigate detention centers run by and for the feds to house immigrants, but not any other federal detention facilities. It calls AB 103 an "improper, significant intrusion into federal enforcement of immigration laws" and again a violation of the Supremacy Clause.

The third law, SB 54, the California Values Act, will probably get the most attention. This is the law that turned California into a "sanctuary state" by limiting the circumstances in which state and local law enforcement agencies can cooperate with immigration officials. As much as Sessions would love to commandeer local police into helping detain immigrants, the feds can't do that, any more than they can force local police to arrest people for federal drug offenses. If immigration enforcement is a concern of the federal government (as this lawsuit repeatedly insists), then it's up to the feds to enforce immigration law, not local police.

What so-called sanctuary cities (and states, in California's case) have been doing has been declining (in most cases) to share information about a person's immigration status with the federal government. When the feds send "detention orders" to local jails and state prisons, asking them to hang onto an inmate they believe is in America illegally, this is just a request. The federal government does not have the authority to require that local police detain him or hand him over.

But there is a federal law that prohibits states and cities from interfering or prohibiting communication between local law enforcement and the feds about a person's immigration status. The lawsuit argues that SB 54 impedes these communications. The California law does have exceptions in the cases of immigrants who have been convicted of many types of crimes, but the Justice Department lawsuit notes that the superseding federal regulation doesn't make these distinctions. It further notes that the list of crimes that permit information sharing under California law is narrower than the list of crimes that could get an immigrant deported.

It seems plausible that the first two laws could get struck down (and perhaps should get struck down) for reasons that have absolutely nothing to do with federal immigration policies and enforcement. The challenge to SB 54 will be the one that other cities and states will be watching. A ruling could help determine what sort of immigrant-protecting policies cities and states are permitted to put into place.